Publication of Information about Complaints against Members

Bernard Jenkin Excerpts

Thursday 2nd December 2010 Commons Chamber

[Mr Barron]

I quoted the figures from the commissioner’s last annual report. During the time of the leaks, The Daily Telegraph and everything else, 245 complaints were never followed up whereas 72 were. My hon. Friend will know that they were not necessarily all upheld, and in such cases the commissioner wants to say that in terms so that there can be no equivocation.

The numbers that are investigated and the number of complaints that are not upheld are sometimes published by the commissioner, as my hon. Friend will know, through the commissioner giving a memorandum to the Committee and the Committee doing its own investigation on that basis and publishing it. All the information has been around in the House in one form or another for many years—since before I became a member of the Committee. I do not have the exact figure for the number of people among the 72 whose cases were followed up who were not found to have done anything wrong. If my hon. Friend is interested, I will try to get that figure from the commissioner, but we must recognise that the commissioner works independently from the Committee, although we have contact with him.

The second motion seeks to implement a recommendation of the Committee on Standards in Public Life—I think we used to call it the Kelly committee—that the commissioner should be able to carry out an inquiry without receiving a complaint. As my Committee’s seventh report points out, that would bring the House’s procedures into line with those of the House of Lords and of the compliance officer. It will also allow the commissioner to investigate a matter that has been reported on by the compliance officer and that raises code of conduct issues. For the first time, it makes proper provision for self-referrals, although they will continue to be subject to the Committee’s agreement.

There is a risk, as the report acknowledges, that giving the commissioner such a responsibility might raise public expectations that each and every allegation will be investigated or that the commissioner will turn into some kind of witchfinder-general. Let me make it clear that that is not going to happen. The Committee does not want it and the commissioner is not asking for it.

The amendment to the Standing Order provides for the commissioner to inquire into

“specific matters which have come to his attention”.

There is also a built-in requirement that there must be sufficient evidence of a possible breach of the code or rules to justify taking the matter further. In the 245 cases in the last annual report there was no evidence and they were not acted on. A lurid newspaper headline or unsubstantiated speculation will not lead to an inquiry. The process must be driven by the evidence and the evidence must come to the commissioner.

It is important, as my Committee’s report recognises, that the commissioner has the resources he needs to do his job. We supported the temporary expansion of his office to deal with the increase in the number of complaints over the past two years and, if necessary, we will do so again. However, there is no expectation that that will happen. The current work load is somewhat smaller than that of 12 months ago.

[Mr Bernard Jenkin (Harwich and North Essex) (Con)]

I apologise to the right hon. Gentleman for missing his opening remarks, but it was his subsequent remarks that I wanted to hear. Will the motion allow right hon. and hon. Members to make self-referrals, which we know the commissioner discourages?

[Mr Barron]

It would do that. Self-referrals would carry on and, indeed, there has been one since the election. However, self-referrals will still have to come in front of the Committee and the commissioner will effectively ask permission, although we do not direct the commissioner by giving permission or telling him not to do things. He works independently of the Committee. Self-referrals will carry on in much the same way as they do at the moment.

Of course we can all help to ensure that the commissioner has the resources to do his job by acting at all times in full compliance with the code of conduct and the associated rules. Members of this House decide what workloads are and whether treatment is fair or unfair by what we do on a regular basis.

The third motion, tabled in the name of members of the Committee on Standards and Privileges, was not on our original shopping list, but we are grateful to the Backbench Business Committee for adding it to today’s business. It relates to a proposal that was put to Sir Christopher Kelly and the Committee on Standards in Public Life by our former Chair, now the Leader of the House, to add lay members to the Standards and Privileges Committee. The proposal was supported by the Kelly committee in its 12th report. Lay members already serve on the Members Estimate Audit Committee and they will soon sit on the Speaker’s Committee for the Independent Parliamentary Standards Authority. Lay members provide the public with reassurance that the Committees are not cosy gentlemen’s clubs, where deals are stitched up and scandals are hushed up. They can also bring valuable outside experience and expertise with them. It is common practice for standards bodies dealing with the professions to have lay members, and in the view of the Committee on Standards and Privileges it should be the practice here too. I say that as a now former lay member of the General Medical Council; I spent nearly nine years in that role, sitting with various clinicians.

That said, adding lay members to one of the House’s senior Committees raises some important questions. For example, the Committee on Standards in Public Life recommended that the lay members should have full voting rights on the Standards and Privileges Committee. The question is whether that would mean that the lay members could vote on matters relating to privilege. I assume not. I know that the Clerk of the House has reservations about allowing lay members to vote at all, because he wrote to me about it following the publication of the motion. In practice, of course, we have to recognise that any decision of the Committee that was not supported by the lay members present would lack public credibility. It may be that the lay members will not need to have a formal vote to have a decisive influence.

The Procedure Committee might wish to consider other questions identified in my Committee’s report, such as how many lay members there should be and whether they should form part of the Committee’s quorum. The Kelly committee suggested there should be two lay members, but a case can be made for more than two. I hope that the Procedure Committee will wish to consider that. We also suggested that lay members should receive modest remuneration, directly related to the volume of work that they carry out. We felt strongly that to provide the public with the greatest possible confidence in their appointments, the lay members should be appointed to the Committee but not by the Committee. The Procedure Committee may wish to consider what would be the best way of making the appointments, what qualifications those appointed should have, what should be the term of the appointments, and who should be involved in making them.

My Committee’s understanding until recently was that progress on the issue was being held up by the Government’s work on their recall policy. However, a recent letter from the Leader of the House to Mr Speaker has put us right on that, and the House has now been given the green light to proceed. In the Committee’s view, the best way forward is to ask the Procedure Committee to come up with some workable proposals for putting the matter into practice. It is an important reform and it needs to be got right.

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[Mr Heath]

That is a very helpful intervention, and of course the landscape has changed since a year or so ago. We now have the compliance officer in the Independent Parliamentary Standards Authority, who is responsible for investigating some matters. Having that memorandum of understanding seems to me a very positive way forward.

I mentioned the time that investigations sometimes take and the adverse effect that that may have on a Member’s reputation. As I said, it would be sensible for the commissioner to be open about the process of an investigation, such as when it began and where a Member had reached in the queue, to ensure that we have a more transparent approach. It is also important that Members know at the first opportunity that a matter relating to them is under investigation. It should never be the case that a Member hears that from the press or from a political opponent.

The Government support the move to give the commissioner a power to initiate investigations, which, to an extent, ties up a process started by the Parliamentary Standards Act 2009. Without that power, the commissioner would not be able to act on referrals from the Independent Parliamentary Standards Authority compliance office. That would clearly be unsatisfactory, because the House would not be able to take action against a Member who had knowingly submitted an improper expenses claim. However, this issue goes wider than that; it is absurd that allegations about a Member’s conduct can be splashed all over the newspapers, yet the commissioner is powerless to investigate unless he receives a complaint from a member of the general public. That is an unnecessary hurdle. If we can trust the commissioner to use his good judgment to carry out investigations, we can trust him to decide when to initiate them.

Finally, the Government support the principle, first advocated by my right hon. Friend the Leader of the House, that the Standards and Privileges Committee should be strengthened by the presence of lay members. Although that is ultimately a matter for the House, the Government take an interest, given the commitment in the coalition agreement to establish a right to recall Members who have been found guilty of serious wrongdoing. There is obviously a potential role for that Committee in the process of adjudication on recall cases, and the presence of members from outside Parliament will help to build people’s confidence in our system of internal compliance. In supporting that, we note the concerns expressed by the Clerk of the House, to which the Chairman of the Committee referred, that if lay members are given full voting rights, they might not enjoy the protection of privilege or their presence might compromise the Committee’s position based on privilege in respect of judicial review. The Procedure Committee will want to look particularly closely at that, while the Government will be taking a close interest as part of the ongoing work on the draft parliamentary privilege Bill.

[Mr Jenkin]

I am very grateful that my hon. Friend has addressed the question of privilege and lay members, and I am grateful for the Government’s measured and sensible response to this approach. However, does it not begin to advance the argument in favour of having a standards committee that is separate from a privileges committee? If there really are two functions that require lay members to be involved in one function and not the other, should we not have two separate committees, permanently? I shall discuss that in my remarks later.

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[Helen Jones]

The hon. Gentleman makes a fair point. When the Procedure Committee looks at the issue, I hope that we will be able to avoid that. With great respect to all the ladies and gentlemen who serve on many committees, I do not want to see the usual suspects. I would like to see people who have not been involved before and who bring an entirely different perspective.

[Mr Jenkin]

The third motion concerns by far the most contentious matter before the House this afternoon. As Chairman of the Public Administration Committee, which is responsible for the public appointments commissioner, I can attest to the fact that what the hon. Lady is saying is absolutely correct. I do not think that Whitehall is the model of how to make public appointments, and in any case there comes a point where, even if we are bringing lay members into House, it should be this House that appoints them, not necessarily ex-civil servants who do not understand how the House works.

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[Peter Bottomley (Worthing West) (Con)]

One of these three issues—ensuring that resources are available to the Parliamentary Commissioner for Standards—is vital. It is a tragedy and a disgrace to the House that we did not do this when Elizabeth Filkin was the commissioner. There is not enough time to go back over all that now, but the House does not have a very good or consistent record.

The question of whether lay members will have privilege should not be too difficult. Presumably, we extend privilege to the commissioner, so we ought to be able to extend it in the same way. I do not have a view on whether we should go for a sub-committee of Members only to deal with privilege issues. I shall not argue against the proposal on lay members, but I note that the provision that they cannot have been a Member of Parliament before would exclude someone such as Martin Bell who would be eminently qualified to be a lay member, but that might be the rough justice we will have. I suspect that if there were lay members, we could avoid hon. Members having the dilemma that he and I faced when we were members of the Privileges and Standards Committee and agreed, in one or two cases that we considered, to use the criminal burden of proof rather than the balance of probabilities. I think that we made a mistake; I think he acknowledged that in a book and I am perfectly willing to say now that we did make a mistake. Again, however, the reasons behind that are not for discussion today.

Paragraph 25 of the Privileges and Standards Committee’s HC 67 report says that the Committee had “read with some concern” the suggestion of the Committee on Standards in Public Life that

“MPs should be required to register positions of responsibility in voluntary or charitable organisations, even if unpaid, together with an indication of the amount of time spent on them.”

Bluntly, I would ask that Committee why not spend more time looking at what MPs do in our job rather than what we do with our spare time? In my time at Parliament, I have been a trustee of Christian Aid, chairman of the Church of England Children’s Society, a member of the council of Mind—previously the national association for mental health—and a member of the council of Nacro. I have also been involved with other, less nationally prominent, organisations. I do not think that I would have accepted the invitations to take those positions if I had thought that I would have to log the amount of time I spent going to and at meetings, and I doubt whether I would have taken on the position of being parliamentary warden of St Margaret’s at Westminster. There is a whole range of issues on which that Committee ought to wake up, and if it wants to take advice from me publicly or privately I shall offer it.

[Mr Jenkin]

Is not the corollary of that recommendation that an MP who went on a holiday to learn how to paint watercolours would have to fill in a form and register it because that would be time spent not as an MP but doing an unpaid extracurricular activity? Why not register everything we do not do for Parliament in our spare time?

[Peter Bottomley]

I think my hon. Friend makes the point that if we registered what we did not do we would probably have a longer list than if we registered what we did do. The key point is that the general aim of having transparency matters.

The first of the motions introduced by the right hon. Member for Rother Valley (Mr Barron) concerns publication. During my time in Parliament, there have been two or three cases in which I have been rather proud of my approach to them and the persistence I maintained. However, two of them ended up with accusations being made against me of being a paedophile, one of which was swallowed by a national newspaper, which published in 2 million copies a case against me. If a Parliamentary Commissioner for Standards took media attention as a basis for starting an investigation, I would object. As it happened, in that case, no other newspaper copied the allegation, and the first settled, at pretty heavy expense to it, and made a damages payment. I wish those events had not happened, but the case involved people whom I had upset. They were bad, mad or sad; I was bold and pretty decisive, and there ended up being a series of allegations against me.

In a second case, a constituent whom I had helped complained to the commissioner that I had taken obscene photographs of his children. The commissioner found that there was no case to look into, but if that person had gone to the papers and they had run the story as they normally would, under the current arrangements the commissioner would have had to look into it. We have to be aware of such dangers. We cannot legislate against all possibilities, but we have to be careful about saying that just because there has been media attention, the commissioner should get involved.

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[Mr Bernard Jenkin (Harwich and North Essex) (Con)]

I agree with the point made by the hon. Member for Manchester Central (Tony Lloyd) about how we choose the lay members. The House has fallen into the habit of finding people seen to be more respectable than we are in order to resolve some of the difficulties that have arisen. Inevitably, they turn out to be former permanent secretaries, but with the greatest respect to those eminent people, they are seen as more respectable only because they have not been exposed in public life to the extent that many of us in public life have been.

[Helen Jones]

Continuing the debate about who should be appointed, does the hon. Gentleman agree that one of the problems we have encountered—we will see this in the debate later on the Independent Parliamentary Standards Authority—is that civil servants tend to want to fit everyone else into the civil service mode, and often do not understand the work of a Member of Parliament?

[Mr Jenkin]

I wholly agree with that point, and it fits with the one I am trying to make, which is that their perspective is necessarily a different one, owing to civil servants’ long and distinguished experience. Very often—it has to be said—Parliament will have been, throughout their careers, perhaps a matter of great frustration to them, and they might well share the feeling of many others about how poorly the House has done its jobs in various ways over the years. I do not think, therefore, that they necessarily have the right perspective—they have one perspective, but it cannot be solely the right perspective. We have to take their recommendations gratefully and humbly, but add a wider perspective to them to give them life.

On the question of adding lay members to a Select Committee, the right hon. Member for Rother Valley (Mr Barron), who moved the motion, gave examples of where lay members have been added to other committees. However, those are not parliamentary committees and are not, for example, subject to the question of privilege, and it is on parliamentary privilege that I wish to make three brief points. First, there are members of the judiciary and senior figures in public life who have served elsewhere in public life who are either careless of the question of parliamentary privilege or actually could not care less about parliamentary privilege.

The word “privilege” carries certain overtones. At one stage before the election, it went out to the Conservative party that we should not use that word, because it would be misunderstood and seem to relate to the then Leader of the Opposition’s education. In fact, every Parliament in the world of any distinction enjoys some measure of privilege or immunity in order that those Members can do their job. The reason we had the Bill of Rights in 1689 was to enable the House to function, and we still need those privileges, that protection and those immunities. We hold those immunities not for ourselves and the protection of our own persons or private interests, and not to protect us from the criminal law if we commit criminal offences—as we have just discovered in a recent case—but so that we can advance the interests of the country freely and without fear or favour. These are the people’s privileges. I urge the Procedure Committee, as it considers this matter, to accept the advice of the Clerk of the House. Let me, for the second day on the trot, quote from a note from the Clerk. Referring to the role of lay members on the Committee, he made it clear that he did not comment on the merits of the proposal itself, which I personally welcome, but he also said:

“It is not clear to me that their participation in decision-making by voting is in fact covered by parliamentary privilege. At the very least the matter is questionable and therefore may be justiciable.”

Until that matter has been comprehensively and categorically resolved, it would be sensible for the Procedure Committee to recommend that if the Standards and Privileges Committee is to have lay members, they should not be voting members.

I imagine that it would be extremely hard for the Standards and Privileges Committee to ignore the advice of the lay members, particularly if they are as eminent as I hope they will be. I very much hope that one of them will be a retired judge, for example. I think that it would greatly assist the functioning of the Committee to receive more legal advice, so that it could interpret the byzantine rules and regulations and be navigated through difficult, contentious issues of evidence and fairness. After all, that is what the Committee is about. It would be very difficult to ignore the advice of a retired judge, whether he had a vote or not.

Secondly, I should be interested to know how often votes take place on the Committee. Never? I see a shaking head.

[Peter Bottomley]

Not never, but not frequently.

[Mr Jenkin]

My hon. Friend says “Not never, but not frequently”, and I observed the right hon. Member for Rother Valley shaking his head.

It would be awful if decisions were split on some of the contentious cases that we are discussing. The voting is not really relevant, and I think that it can be set aside until the question of the privileges of the House has been resolved.

We keep running up against the question of privilege. The arrest of my hon. Friend the Member for Ashford (Damian Green) led to a protracted argument about it. The case relating to privilege has just been resolved—I recognise that other cases are sub judice under the criminal law, so I will not comment on them—but resolving it took months. If we had had a more watchful Privileges Committee entirely devoted to the question, we could have forestalled all that. More to the point, if we got on with the parliamentary privileges Bill that everyone agrees we need, we could put the question of privileges on a much less contentious and disputed footing.

That is my third point. When will we have a parliamentary privileges Bill, so that we can resolve some of these issues? Australia has enacted such a Bill, as have other Commonwealth countries. It is time that we stopped resting on the 1689 Act, which is increasingly irrelevant in this information age whose media are so different from those of the past. Parliamentary privilege has to contend with many issues that were not conceived in those days. It is time we updated the Bill of Rights with a parliamentary privileges Act, and I hope that the Procedure Committee will consider that.

I also think that we should have a Select Committee on parliamentary privilege, separate from the Standards and Privileges Committee. As soon as a big issue arises, what happens? Following the arrest of my hon. Friend, it was immediately agreed—somewhat insultingly—that the existing Committee was not up to the job, and that much grander and more important panjandrums would have to be placed on a separate Committee to consider the issue of privileges. I think we had better recognise that the two functions are different. The fact that lay members will be involved with one aspect of the work of the Standards and Privileges Committee and not the other underlines the fact that there are two separate functions, and that they should be undertaken by two separate Committees. I very much hope that that will be one of the Procedure Committee’s recommendations.